2022 IL App (1st) 190882

No. 1-19-0882

Opinion filed March 31, 2022.

Second Division

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IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

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THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 6742 ) ARCADIO DAVILA, ) The Honorable ) Nicholas R. Ford, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Arcadio Davila was found guilty of first degree murder and attempted first degree murder, then sentenced to a total term of 80 years in prison. On appeal, he contends the State failed to prove him guilty beyond a reasonable doubt because his conviction rested on a single eyewitness-victim who misidentified him. Defendant also contends the State improperly introduced video evidence of his interrogation that was more prejudicial than probative. Finally, defendant contends the State violated his constitutional right to a speedy

No. 1-19-0882 trial. He requests that we reverse his conviction outright or alternatively remand for a new trial.

For the reasons to follow, we reverse and remand for a new trial.

¶2 BACKGROUND

¶3 Defendant was arrested after he allegedly drove up beside a car in which Ricky Pike and Christopher Dear were sitting and then shot Pike, killing him, and attempted to murder Dear.

Dear was the only eyewitness-victim to identify defendant and testify at trial. The State theorized that the shooting was gang related (although neither Dear nor Pike had any gang affiliation) because Dear was unwittingly wearing a baseball cap with rival gang colors in Imperial Gangster territory, thereby spurring the shooting. Defendant meanwhile claimed it was a case of mistaken identity, and he proffered an alibi that he was at home in bed when the shooting took place. He

also offered evidence from cell phone towers suggesting he was at home before the murder and court documents suggesting that he was in the Chicago Loop paying off traffic tickets several hours after the murder.

¶4 Prior to trial, defendant filed several motions to dismiss the State’s case as violating his constitutional right to a speedy trial. The trial court denied the motions, finding that defendant participated in or acquiesced to the delay. In addition, defendant filed an oral motion to exclude certain portions of his videotaped interrogation, claiming the clips were more prejudicial than

probative. Following a review of the videotape, the court granted defendant’s motion in part and rejected it in part, permitting the State to present some allegedly prejudicial statements. These specific statements will be discussed in further depth in the analysis section.

¶5 At trial, the surviving victim, Dear, age 30, testified that he had known defendant since

childhood, having lived a block apart and attended grammar school with both defendant and defendant’s older brother, Jose, who was in the same year as Dear. Dear had been to defendant’s

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No. 1-19-0882 house and knew his mother, who worked at the laundromat and sometimes gave Dear free wash services. Defendant, his brother, and Dear all played basketball in the alleyways by their respective houses “more times than [Dear] could count.” They attended the Boys and Girls Club and generally socialized together. Following grammar school, defendant and Dear went to

different schools but still saw each other in the neighborhood and had the same friends. Over the years, defendant and Dear saw each other “thousands” of times. On cross-examination, Dear acknowledged he knew Jose and defendant were members of the Imperial Gangsters during their high school years. In 2004 or 2005, around age 17, Dear moved from the neighborhood and did not see defendant or his brother again until December 2011, when they attended a party thrown by a grammar school friend from the old neighborhood. There, Dear caught up with Jose and also said hello to defendant.

¶6 Dear testified that he and defendant nonetheless tragically crossed paths months later after Dear and Pike had spent an evening out in Chicago. On August 2, 2012, Dear and Pike went bar hopping in Wicker Park, although Dear claimed to have had only two drinks and then some food during their outing. Around 3:30 a.m. on August 3, the two drove to Pike’s apartment towards Kedzie and Armitage Avenues. Two women they had met while out followed directly behind them in another vehicle. Pike had just moved into the apartment and neighborhood, which was around where Dear had spent his childhood. As Pike drove them, Dear, who was wearing a

green and gold Oakland Athletics ballcap in a forward-facing fashion, discussed how much the neighborhood had changed and also observed what still remained.

¶7 Around 4:30 a.m., Pike parked along the right side of 2145 N. St. Louis Avenue in a

brightly lit stretch, with both the street and alley lights illuminating the area, in addition to the headlights of the women’s vehicle behind them. Dear and Pike remained in their vehicle with the 190884

No. 1-19-0882 driver-side window down. Dear then saw headlights approach close from behind, and a car

pulled parallel to and slightly ahead of them and stopped. Dear, who was not wearing a seatbelt, leaned forward and looked past the driver’s side. From there, Dear recognized defendant

“instantly” as the lone driver of the parallel vehicle before defendant said in an aggressive tone, “Hey, what’s up,” as he extended his right arm and fired across the passenger seat into Pike and Dear’s car. Dear said, “[i]t was clear enough for me to see him,” and Dear was able to observe defendant’s eyes. At the time of the shooting, Dear could also see defendant’s hair (and even how it was styled in braids), skin complexion, chubby young face, and mouth, even as defendant spoke. Dear wanted to shout, “it’s me” and “stop,” but there was no time. Instead, he saw about

two muzzle flashes and ducked as low as possible, then placed his hands over his head. Pike, who had been buckled in, slouched on top of Dear, and defendant fired about eight more shots before peeling away in his car.

¶8 One bullet struck Dear in the left hand, and Pike also was struck and gasping for air with

a “glazed look over his face” and blood spreading over his shirt. Despite Dear’s pleas for help, the women in the vehicle behind them drove away. Dear exited the car and grabbed Pike, holding his body and encouraging him to breathe, but Pike soon stopped breathing and was dead. Dear

could think of no reason why defendant would shoot them. Subsequently, Dear called 911 and was transported to the hospital for treatment of his hand. There, he also met with police.

¶9 Initially, Dear told police the shooter’s name was “Juney,” a nickname for defendant’s

brother, Jose, but after viewing an image of Jose, Dear clarified that the shooter was defendant, Jose’s little brother. Dear testified that while still hospitalized some four hours after the shooting, at 8:20 a.m. on August 3, he identified defendant from a multisubject photographic array. The next day, at 3:20 a.m. on August 4, Dear identified defendant from a live lineup at the police

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No. 1-19-0882

station and had no doubts or hesitation about either identification. At trial, Dear noted that the station lineup photos showed defendant’s hair in a long ponytail, as if the braids had just been taken out, thus buttressing Dear’s account that defendant wore braids at the time of the shooting.

Dear then testified he was 100% sure defendant was the shooter and also made an in-court identification of defendant.

¶ 10 Chicago police lieutenant James Labbe testified that he met with Dear at the hospital about an hour or two after the shooting. Dear said he knew the shooter to be the younger brother of Jose “Delvia” or “Davila” and described the shooter as a chubby, light-skinned Hispanic man with a baby face, no facial hair, and long hair in braids. Dear believed defendant’s nickname was

“Juney,” although that was later determined to be Jose’s nickname, and knew defendant to be a member of the Imperial Gangsters. Dear also relayed that he had gone to grammar school with

defendant, a fact Lieutenant Labbe later confirmed by retrieving records from Darwin Elementary School. Officers then presented Dear with a six-person photographic array based on this information, and according to police, Dear immediately and without hesitation identified

defendant as the shooter. That day, Dear showed Lieutenant Labbe a Facebook invitation to the December 2011 party, where he had seen defendant, and also showed him defendant’s Facebook profile.

¶ 11 An investigative alert subsequently issued for defendant, but on the night of August 3, defendant voluntarily turned himself in. He was questioned by Lieutenant Labbe and another detective from August 3 to August 4, 2012, and presented them with information about his

whereabouts and his cell phone. Police then spoke with defendant’s mother, stepfather-to-be, brother, and girlfriend/fiancé. On cross-examination, it was noted that police subpoenaed defendant’s phone for its cell tower locations and also extracted data, including text messages, 190886

No. 1-19-0882 call logs, incoming and outgoing calls, and photos and deleted files. According to a report, police determined a search of the data offered nothing of evidentiary value in the case, meaning police found no incriminatory or exculpatory evidence. Defendant was subsequently released from custody but then arrested about eight months later, in March 2013, and formal charges followed.

¶ 12 Evidence at the murder scene showed three bullet holes in the driver’s side door, two in the windshield, a bullet fragment on the passenger dashboard, and a fired bullet that lay in the rear driver’s side compartment. Dear’s Oakland Athletics cap was also recovered from the front driver’s console area of the car. Pike’s autopsy report showed he died from six gunshot wounds in his upper left arm, upper left shoulder, upper left chest, left back, left arm, and a superficial wound on his left thigh. The medical examiner ruled it a homicide. In addition, based on a pod video of the area near the shooting, police believed the shooter possibly had been driving a silver or gray car.

¶ 13 The State presented evidence that this otherwise senseless murder and shooting was gang

related. Chicago police officer Ronnie Rodriguez, an expert in street gang investigations, testified that in August 2012 the street block where the shooting occurred was specifically

controlled by Imperial Gangsters. The Orchestra Albany gang, a rival, was also active in the area, and its members claimed the Oakland Athletics logo as their symbol. He testified an

Oakland Athletics hat could be worn cocked to the right or in a regular fashion, and both would represent an Orchestra Albany gang member. As rivals, the gangs did not get along, and if they recognized a member of another gang, they were “expected to take action.” Officer Rodriguez

testified that defendant’s tattoos (i.e., “Chi-Town Gangster,” etc.) showed he was a member of the Imperial Gangsters. The State thus implied that defendant would be willing to shoot a person wearing an Oakland Athletics hat and representing the rival gang. The defense, on the other

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No. 1-19-0882 hand, implied the shooting was perpetrated by a different gang, and hence not defendant, by

establishing on cross-examination that the Latin Kings were the “biggest and longest” rival of the Orchestra Albany gang.

¶ 14 Detective Daniel Gillespie testified next that he and his partner, Detective John Lally, conducted a videotaped interview of defendant following his second arrest on March 4 and 5, 2013, about eight months after the August 3, 2012, shooting. In lieu of direct testimony by

Detective Gillespie, the State published this nearly three-hour long videotape (exhibit 87 1) to the jury. The video opens showing a fish-eye camera view of a windowless police holding cell, where defendant is asleep on a bench only to be awakened by a detective walking in. Defendant is interviewed first by one detective (although the record does not distinguish whether it is

Detective Gillespie or Detective Lally) serving as the “good cop” for the first 37 minutes and second by the other detective serving as the “bad cop” for the next 40 minutes. During the next hour and a half or so, both detectives interview defendant. The tone throughout vacillates between conversational and strident by the parties. At several points, detectives provide defendant with Miranda warnings (Miranda v. Arizona, 384 U.S. 436 (1966)), and defendant basically inquires when he will be released, presuming it will be after 48 hours, as in 2012.

While the video clearly shows defendant’s physical gestures, the camera angle and quality are insufficient to show any detailed facial expressions. Additionally, pursuant to the pretrial hearing, the video was edited with some statements redacted, resulting in a barely noticeable skip

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No. 1-19-0882

forward in the interview at various points. We have reviewed the videotape in full and summarize the interview as follows. ^[2]

¶ 15 At the start, the interviewing detective informed defendant, then age 24, that he had been rearrested for the murder of Pike. Defendant responded he believed another person named Jarvis was already in prison for the murder. Regardless, defendant stated that his story had not changed since he turned himself in pursuant to his lawyer’s advice back in August 2012. Defendant

insisted that he had already told police where he went and given them the names of seven or eight people with whom he had been at the relevant time. Defendant stated that on August 2, the night before the murder, he had been driving around in his white Buick LeSabre with his

girlfriend and another friend but was home by 11 p.m., along with his mother, brother, and stepfather. He fell asleep by midnight.

¶ 16 Defendant acknowledged there was usually a neighborhood group hanging out on the corner of Medill and St. Louis Avenues (about five blocks from where the murder took place), and that’s where he picked up his brother around 10 p.m. or 10:30 p.m., before returning home on August 2. Defendant also volunteered that, after he was released the first time in 2012, he cut his hair off because people were confusing him with others, including his brother, and accusing

him of crimes. When the detective asked whether the victims might have mistaken defendant for his brother, defendant stated that he and his brother were both home on August 2 and 3.

¶ 17 Defendant further stated that later in the morning of August 3 (after the shooting had occurred) he went via the Blue Line Chicago “L” to traffic court at the Richard J. Daley Center

(Daley Center) in Chicago to pay fines around 10 a.m. or 10:30 a.m. This was after also visiting the Secretary of State on Elston Avenue to reinstate his license (which issued several days later).

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Defendant and his boss had gone to the Secretary of State’s office around 7 a.m. or 8 a.m. The detectives responded that they had talked to defendant’s boss already and that he was not with defendant then. Defendant stated his boss was mistaken, as he was old and smoked too much

weed. Defendant emphasized that on August 3, he had to get his license paperwork at the Secretary of State first before going to the Daley Center to pay the tickets. Defendant stated that in fact he had paid bills all during that week, including on August 2. He also queried why he would be doing such things, like paying traffic tickets and $1000 fines, the morning after a murder and asserted the police were wasting their time focusing on him as a suspect. He insisted

he would not pay fines but then do something to get arrested. Defendant acknowledged that in the morning on August 3, he knew something had happened in the neighborhood because his phone “blew up” with messages, but he did not respond because he had to get to court.

Following court, defendant returned to his home and then went to Foot Locker with his girlfriend in the afternoon.

¶ 18 Some 40 minutes into the interview, the detective informed defendant that the surviving victim grew up with defendant and was his brother Jose’s age, but the detective did not then

reveal the victim’s name or image. Defendant repeatedly denied knowing the victims and asserted they did not know him. Defendant stated that police had not shown him photos of the victims previously. The only way he was familiar with Pike was because he had seen his image

on a pole, presumably outside, since after the shooting there were photos of Pike everywhere in the neighborhood and the shooting was the talk of the barbershop. Defendant said he had heard another individual, in addition to Jarvis, was involved in the shooting and that both were

Imperial Gangsters. He had heard from the barbershop that the victims were “neutrons,” meaning they had no gang affiliation, and that the surviving victim had placed his hands over his head

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No. 1-19-0882 when shot at and when “his buddy” had died. Following this statement, defendant then made a

physical gesture to that effect. At some point after the detective told defendant again that the surviving victim went to grammar school with defendant and used to be friends with him, defendant asserted the detective was saying the victim was an “OA or something,” meaning an

Orchestra Albany gang member, to which the detective responded he had never said that.

Defendant then asserted he used to chill with the Orchestra Albany gang and got along with everyone.

¶ 19 Defendant also repeatedly and stridently denied the shooting with such statements

throughout as: “I didn’t pull up on anybody. I was at my house sleeping”; “At four in the morning, I was probably on my twelfth or thirteenth sleep”; “I didn’t shoot nobody”; “I had

nothing to do with this case”; “I don’t have no gun; I didn’t shoot anyone”; “I don’t have hate in my heart for people like that”; “Lord as my witness, I get down on my knees right now, it wasn’t me, I wasn’t there”; “I wouldn’t risk myself for anything this dumb at all. Period.” He insisted he was never outside at the time of the murder, the accusations were “nonsense,” and it was a

“bullshit case,” since he was just as clueless as police about why the victim would just “put a case on” him. While defendant was sorry for the victim and his family, defendant was not there but was sleeping. Defendant asserted it did not matter what the victim said and suggested several times that police obtain camera footage from the street by the shooting. Defendant said there had to be some other evidence that would point the detectives in the right direction, as they were getting nowhere with him because he did not commit the crime. The detectives nonetheless noted that the evidence was pointing at defendant. When the detectives noted there were only a few

people who knew the absolute truth in this case, defendant responded, “Exactly. And, that’s me, God, and my family who was there.”

- 10 - No. 1-19-0882 ¶ 20 Defendant asserted he was no longer active with the Imperial Gangsters but working a full-time construction job and thinking of his kids. Defendant insisted he was trying to get his life in order. Yet defendant acknowledged that he was on the street corner with two Imperial Gangsters who were shot a mere two nights before Pike’s murder. He stated, “They shot two of my guys,” and defendant took them to the hospital. Defendant believed it was the Latin Kings’ doing and stated he could have gotten shot as well. Defendant also acknowledged that his brother previously was shot twice, his cousin was a “King,” and many people from the neighborhood knew him, in addition to the police. Defendant further stated that one of his friends, a neutron, lived on that corner. The detective and defendant discussed how defendant became involved with gangs at a young age and how defendant was getting along with his ex-girlfriend, girlfriend, and children. They also discussed his family and siblings. Defendant stated that, even though his brother was shot two times and nearly died, he did not retaliate. That was not how defendant operated because he did not want to get locked up. ¶ 21 Detectives also pursued another line of inquiry as to defendant’s associate “Spooky,” an Imperial Gangster who used to drive a gray Pontiac (like that thought to be the murderer’s). Defendant stated around the time of the murder he did not then spend time with Spooky and only found out about Spooky’s look-alike car after defendant was released from his arrest in 2012. Detectives then asked defendant why he was associating with Spooky when defendant knew about Spooky’s car (implying the car was the same as that involved in Pike’s murder). Defendant stated that every weekend his son and Spooky’s son hung out, got haircuts, and ate together. The detective noted that Spooky was a registered sex offender and questioned why defendant would associate with Spooky if he wanted to stay out of trouble. - 11 - No. 1-19-0882 ¶ 22 At the two-hour mark in the interview on March 5, detectives finally revealed Dear’s identity to defendant and showed defendant Dear’s image. On seeing his image, defendant immediately said, “Oh, I know him!” and claimed to have nothing against Dear, who was not a gang member. Defendant stated he had not seen Dear since grammar school and did not remember seeing Dear at the recent party, although he admitted attending that same party. Defendant then continuously denied the crime, stating he would never do anything to Dear. While defendant acknowledged that he was nearby at St. Louis and Medill Avenues the night before the murder, he claimed it was only for about 30 minutes and then he was home by 11 p.m. Defendant stated he was just as mystified as the detectives about why Dear would identify him as the shooter, stating “Your guess is just as good as mine.” Detectives noted that Dear’s memory was very good and he would not simply pull defendant’s name out of thin air. ¶ 23 Detectives suggested the shooting of Pike and Dear was retaliation for the shooting at defendant and the Imperial Gangsters several nights before, which defendant denied. In response, defendant repeated that he was working a full-time job, that he had responsibilities, and that he had gone to court the morning after the shooting. Defendant stated, “I didn’t do it, I’ll tell you right now, I didn’t do it, though. I’m sorry, I’m not your guy,” and “you got the wrong person.” Defendant stated both he and the victims were in predicaments because what was happening to both parties was not right. He noted that he had already been in police custody last time for 48 hours. Detectives urged defendant to confess. Defendant said that, if he had done something, he would confess. With that, the video concluded. ¶ 24 Following the video presentation to the jury and during the cross-examination of Detective Gillespie, it was revealed that the detectives had obtained receipts showing that defendant’s traffic tickets were paid Thursday, August 2, the evening prior to the shooting. A - 12 - No. 1-19-0882 printout from the Cook County circuit clerk further showed several previously issued traffic tickets were disposed of at 10 a.m. on August 3, 2012, in Room CL97 at the Daley Center. This would have been six hours after the murder. Defendant’s license, according to the Secretary of State database, was renewed on August 7, but detectives never sought further information to confirm or deny that defendant had been to the Secretary of State’s office on the morning of August 3, as defendant claimed. Detective Gillespie stated that the purpose of an interrogation was to “find out the truth” and if possible obtain a confession from the suspect. He denied trying to confuse suspects in order to obtain a confession but acknowledged he never presents full information about the investigation to the interviewee. He also acknowledged that defendant did not own a car matching the one they saw fleeing the murder scene, nor did defendant’s friend Spooky. In fact, the police were unable to obtain further information about the car captured by the pod camera. Following the aforementioned evidence, the State rested. ¶ 25 Defendant then presented several witnesses in support of his alibi that he was home with family during the shooting and also presented expert testimony generally challenging the reliability of eyewitness identifications. Defendant did not himself testify. ¶ 26 The first witness was Dr. Geoffrey Loftus, an experimental psychologist and expert in perception and memory. Dr. Loftus testified that pre-event information—or what one already knows about the world at the time an event occurs—can bias a witness’s perception or memory of that event. Alternatively, post-event information—or what a witness encounters after the event is over—can supplement the witness’s memory of the event to create a more coherent or consistent story as to what happened. As such, Dr. Loftus testified that witnesses were capable of developing strong and seemingly real memories that were unwittingly false in certain respects. Several additional considerations, such as the witness’s degree of attention, the duration of the - 13 - No. 1-19-0882 observation, stress, weapons focus, and lighting conditions, could all affect a witness’s ability to draw error-free recollections of an event. For example, as to weapons offenses, many victims focused on the weapon to the exclusion of other aspects of the scene, like the appearance of the person holding the weapon. A witness who identified a shooter as an acquaintance would then no longer need to spend energy or resources on determining who the shooter was, and this dynamic could thus lead to misidentifications. If that same culprit were placed in photos or a lineup, this could solidify the post-event memory. Alternatively, high stress situations lent themselves to post-event information “of dubious accuracy.” Dr. Loftus opined that a person’s high level of confidence in his memory of an event did not necessarily correlate with the accuracy of the memory. ¶ 27 Nonetheless, in this case, Dr. Loftus could not opine as to whether these factors specifically affected Dear’s eyewitness recollection. Although Dr. Loftus had reviewed some of the records and reports from the case, he had not reviewed all of them. He probably did not review any video recorded statements and did not interview any witness in the case. He did not remember whether he had reviewed any photos. ¶ 28 Defendant’s alibi witness, Jose Mulero, testified next that he was the fiancé of defendant’s mother and lived with the family at 5170 N. Lovejoy Avenue during the relevant time in August 2012. On August 2, defendant and his brother Jose came home around midnight (so, technically August 3). Defendant went to his bedroom, while Jose went to the living room to watch television. Around 2:30 a.m., Mulero awoke to use the bathroom and noticed that defendant was asleep in his own bedroom, which was located right next to Mulero’s. Again, at 5 a.m., Mulero awoke. As before, he saw defendant asleep in his own bedroom. Mulero, a light sleeper, testified that the apartment walls were thin, insofar as one could hear people talking and - 14 - No. 1-19-0882 laughing even with their door closed. During the night, Mulero did not hear anyone leave the apartment, although Mulero could not say definitively where defendant was from 2:30 a.m. to 5 a.m. because Mulero was sleeping then. ¶ 29 Defendant also presented evidence showing that he had made a number of cell phone calls using a cell tower near his home. On August 2, those calls occurred around 11:30 p.m. and 10 minutes to midnight. On August 3, they occurred around 1 a.m. and 6 a.m., and two calls were around 8 a.m. In addition, one call took place around 9:30 a.m. on August 3 using a cell tower near 180 W. Washington Street in Chicago. Two other calls took place around 10:30 a.m. on August 3 using a cell tower near 36 W. Randolph Street. The parties stipulated that the Daley Center, where traffic court is held, is located at 50 W. Washington Street. We take judicial notice that, according to Google maps, 180 West Washington Street is within four blocks of the Daley Center, and 36 W. Randolph Street is within one block. See People v. Clark, 406 Ill. App. 3d 622, 632-34 (2010). Finally, the last call was issued by defendant’s home around 11:30 a.m. on August 3. This evidence tended to support defendant’s video statements as to his whereabouts on the morning of August 3, insofar as it showed he was first at home, next in the Chicago Loop, and then home again. However, it likewise showed that the cell phone had no definitive location from about 1 a.m. to 6 a.m. on August 3, within the timeframe of the shooting. Following this evidence, the defense rested. ¶ 30 During closing arguments, the State emphasized that this was a gang-related shooting resulting from Dear’s donning of a cap with Orchestra Albany colors while in Imperial Gangster territory. The State also emphasized that Dear was a strong and credible eyewitness based on his long acquaintance with defendant and on the five factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), commonly known as the “Biggers factors,” which Illinois courts use to assess the - 15 - No. 1-19-0882 reliability of an identification. See People v. Guerrero, 2020 IL App (1st) 172156, ¶ 32. The State played portions of the videotaped interview seven times before the jury, mostly during rebuttal, although the record does not identify which specific clips were played. The defense argued that Dear’s identification was unreliable and was the only evidence against defendant. The defense noted defendant had an alibi with corroborating evidence and that he consistently denied involvement in the shooting. ¶ 31 Following argument and the commencement of deliberation, the jury sent a note containing three questions as to the interrogation video. First, the jury requested to view the portion of the video wherein defendant held his hands over his head and, second, the portion involving the Imperial Gangster shooting several days before Pike’s murder and, third, the portion involving Spooky. The court granted the jury’s request. Over an hour later, the jury sent another note asking, if it found Dear’s testimony credible, would that be sufficient to find defendant guilty? The court instructed the jury that it had the instructions and had heard the evidence and should continue to deliberate. ¶ 32 Ultimately, the jury found defendant guilty of first degree murder and attempted murder. As to both offenses, the jury determined that defendant personally discharged the firearm involved. At the sentencing hearing, it was noted that defendant had a 2010 felony burglary in his background but no other offenses. Taking into account the 25-year firearm enhancement on each count, the trial court sentenced defendant to 49 years for murder and 31 years for attempted murder, to be served consecutively, for a total term of 80 years’ imprisonment. Defendant appealed. ¶ 33 ANALYSIS ¶ 34 Sufficiency of the Evidence - 16 - No. 1-19-0882 ¶ 35 Defendant first challenges the sufficiency of the evidence against him, maintaining the State failed to prove him guilty beyond a reasonable doubt of first degree murder and attempted murder. When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, we must determine whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). In that sense, our function is not to retry the defendant or substitute our judgment for that of the trier of fact. Id. Rather, the trier of fact remains responsible for making determinations regarding the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence. People v. Wright, 2017 IL 119561, ¶ 70. A conviction will not be set aside on appeal unless the evidence is so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. Id. ¶ 36 Defendant now challenges Dear’s identification testimony as unreliable and, further, points to his alibi that he was home sleeping at the time of the shooting, which he claims renders the evidence insufficient. Where, as here, identification is the main issue, the State must prove beyond a reasonable doubt the identity of the individual who committed the charged offense. People v. White, 2017 IL App (1st) 142358, ¶ 15. It is well established that a single positive identification by a witness who had ample opportunity for observation is sufficient to support a conviction. People v. Macklin, 2019 IL App (1st) 161165, ¶ 22; People v. Killingsworth, 314 Ill. App. 3d 506, 510 (2000). ¶ 37 A trier of fact assesses the reliability of identification testimony in light of all the facts and circumstances based on the Biggers factors, including (1) the witness’s opportunity to view the offender at the time of the offense, (2) the witness’s degree of attention at the time of the - 17 - No. 1-19-0882 offense, (3) the accuracy of any previous description of the offender by the witness, (4) the degree of certainty shown by the witness in identifying the defendant, and (5) the length of time between the offense and the identification. Macklin, 2019 IL App (1st) 161165, ¶ 22; Killingsworth, 314 Ill. App. 3d at 510. The Biggers factors continue to be the gold standard for assessing evidence where a defendant’s identity is at issue. See Macklin, 2019 IL App (1st) 161165, ¶¶ 22-23. Moreover, “[w]hile our supreme court and this court have acknowledged studies and decisions that have called into question the reliability of eyewitness identifications, each case must be judged on its own facts against the touchstone” of the reasonable doubt standard. People v. Lerma, 2021 IL App (1st) 181480, ¶ 91. ¶ 38 Here, after carefully reviewing the evidence according to that standard in a light most favorable to the State, we cannot say Dear’s confident and competent testimony identifying defendant as the shooter was so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt as to defendant’s guilt. In light of that standard, Dear’s account of the shooting was consistent and credible. See id. ¶ 92. Dear testified that he had known defendant and his brother from grammar school, having visited their childhood house only a block away, visited their mother at her laundromat workplace, and also socialized outside school at clubs and on the basketball court in their neighborhood. In short, they had interacted “thousands” of times over the years. Given our reasonable doubt standard, the persuasiveness of identification testimony continues to be strengthened by the witness’s prior acquaintance with the accused. See id. ¶ 91; People v. Barnes, 364 Ill. App. 3d 888, 895 (2006). Although Dear had not seen defendant from about 2004 on, he had seen and spoken with defendant in 2011, some months prior to the August 3, 2012, shooting. - 18 - No. 1-19-0882 ¶ 39 Then, in the early morning hours on August 3, in a brightly lit area of the street, Dear leaned forward and recognized defendant “instantly” after defendant had pulled alongside and a little ahead in a car. Defendant said in aggressive tone, “Hey, what’s up,” as he extended his right arm and fired into Pike and Dear’s vehicle, killing Pike and injuring Dear. At the time of the shooting, Dear could see defendant’s long hair (and even how it was styled in braids), skin complexion, chubby young face, eyes, and mouth as it moved. The physical evidence, which revealed bullet holes in the driver’s side door and windshield and Pike’s gunshot wounds to his left upper body, supported Dear’s account. ¶ 40 Applying the Biggers factors, although Dear viewed defendant for only a short period, given the strong lighting conditions and position of the two cars, Dear had a clear and unobstructed opportunity to view defendant. See People v. Wehrwein, 190 Ill. App. 3d 35, 39 (1989) (noting that an adequate opportunity to view the offender is the most important factor for the trier of fact to determine). Moreover, as to the second factor, Dear’s degree of attention was heightened, where he immediately recognized defendant, a childhood acquaintance, with the gun and was mystified as to why defendant would be shooting at him and his friend Pike. Dear testified that, at the time of the shooting, he wanted to shout, “it’s me” and “stop,” but it was too late. As to the third factor, several hours after the shooting, Dear provided an accurate physical description of defendant as the shooter to police, noting he was a chubby, light-skinned Hispanic man with a baby face and long hair in braids. This description is consistent with images of defendant in the record. Dear knew defendant was an Imperial Gangster and stated to police that - 19 - No. 1-19-0882 he had gone to Darwin Elementary School with defendant, both confirmed facts. Dear then immediately identified defendant from a photo array and also in a physical lineup. ^[3] ¶ 41 Under the fourth and fifth Biggers factors, Dear thus displayed a high degree of certainty in identifying defendant only several hours after the shooting. ^[4] See Macklin, 2019 IL App (1st) 161165, ¶ 32 (noting, according to research, the expression of certainty at the time of an initial identification is a relevant indicator of accuracy); People v. Green, 2017 IL App (1st) 152513, ¶ 113 (reviewing courts have found identifications reliable where nearly three months or more elapsed between the crime and the witness’s identification). At trial, Dear testified he was 100% sure defendant was the shooter and also made an in-court identification of defendant. This is hardly the vague, doubtful, or uncertain testimony defendant would have us believe. ^[5] See In re Jonathon C.B., 2011 IL 107750, ¶ 60 (noting that a conviction will not be reversed merely because the defendant claims a witness to be incredible); see also Macklin, 2019 IL App (1st) 161165, ¶¶ 31, 34 (noting that Illinois courts have not rejected a witness’s expression of certainty as an appropriate factor in the reliability analysis); Guerrero, 2020 IL App (1st) 172156, ¶ 34 (same).